1. Sole Gale Sole 2. John Bunge Chengo v Republic
The bottom line
#Kenya's Court of Appeal freed two murder convicts because their trial was badly flawed—unexplained detention, excluded assessors, and contradictory eyewitness identification.
What this practically means
#Executive summary
#Key legal issues
#Continuity and regularity of the trial before a partially heard case
The trial was a nullity because Emukule, J., who took over from Lenaola, J., wrote the judgment without recourse to section 201(2) of the Criminal Procedure Code and excluded the assessors without explanation, without any summing up or their opinion.
Five judges heard the case with interruptions due to abrupt transfers. Lenaola, J. conducted the trial with assessors, but Emukule, J., on taking over, excluded them without explanation; their fate is unknown. There was no summing up and they gave no opinion. That omission breached the law as it then stood, vitiating the trial.
Positive identification by a sole eyewitness
The evidence of PW1, the deceased's wife, could not amount to positive identification of the appellant John Bunge because it was contradictory, varied from her earlier testimony, and lacked any supporting evidence.
Before Sitati, J. she claimed to have identified the appellant by moonlight firing the shot; before Lenaola, J. and Onyancha, J. she said she had not seen him and only received his name from the deceased. The shooting occurred at 8 p.m. in darkness; she could not have seen the source of the bullet or a bullet whizzing by with naked eyes.
Prolonged pre-trial detention
The appellants' 183-day detention between arrest and first appearance before a court was an excessively long and unexplained detention that caused the court serious concern.
The appellants were arrested on 5th March 2003 but were not brought before any court until 4th September 2003. Senior state counsel accepted the excessive period but could offer no explanation. This, together with the over-five-year trial duration, marked the proceedings as unsatisfactory.
Legal principles established
#- Where a trial judge takes over a trial partially heard and excludes the assessors without explanation, omits to sum up to them and to obtain their opinion, the omission constitutes a breach of the law and renders the trial a nullity.
- Contradictory testimony of a single identifying witness, unsupported by any other evidence, cannot amount to positive identification of an accused person.
Court orders
#- 1.The appeal is allowed
- 2.The conviction of each appellant is quashed
- 3.The sentences of death imposed by the superior court are set aside
- 4.The appellants be set at liberty forthwith unless they are otherwise lawfully held
- On appeal from
- High Court of Kenya at Meru
- H.C.CR.C. No. 128 of 2003
- Jurisdiction invoked
- First and final appeal against a conviction and sentence of the High Court under the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "1. Sole Gale Sole 2. John Bunge Chengo v Republic", Case Analysis (2009). Criminal Appeal 311 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/73/eng@2009-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.